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2014 (10) TMI 525 - AT - Service TaxCommercial or Industrial Construction Service - main contractor has paid Service Tax on the transaction - Whether the sub-contractor of a main contractor is liable to discharge the service tax liability on the services provided by him on the same transaction - Held that - Notification No. 1/2006-ST is in confrontation with the charging section, Section 66 of the Finance Act, 1994 and accordingly I hold the same is not applicable in the facts and circumstances of the case so far as the condition relating to not taking of CENVAT Credit is concerned of the service tax paid by the sub-contractor. Further, I notice that the finding of fact recorded by the adjudicating authority having not been challenged by any of the parties, and in view of the categorical finding of fact recorded, I hold that the respondent assessee is entitled to refund - Apex Court in the case of L&T Ltd. 2008 (8) TMI 21 - SUPREME COURT , I hold that opinion of the third member as rendered in the case of Sunil Hi-tech Engineers Ltd. 2014 (10) TMI 524 - CESTAT MUMBAI (LB) by this Tribunal is not binding and held per incuriam as the same is directly in the teeth of the ruling of the Apex Court and is passed without taking notice of the aforementioned ruling of the Hon ble Supreme Court - Decided against Revenue.
Issues Involved:
1. Whether the sub-contractor is liable to discharge the Service Tax liability on services provided when the main contractor has already paid the Service Tax. 2. Applicability of the Board's Circulars and Trade Notices regarding the liability of sub-contractors. 3. Entitlement to refund of Service Tax paid by the sub-contractor. 4. Interpretation of Section 66 of the Finance Act, 1994, and its implications on multi-point taxation. 5. Applicability of Notification No. 1/2006-ST and its conditions on CENVAT credit. Issue-wise Analysis: 1. Liability of Sub-contractor to Pay Service Tax: The core issue was whether the sub-contractor is liable to pay Service Tax when the main contractor has already discharged the tax liability. The respondent argued that both the main contractor and sub-contractor paid Service Tax on the same transaction, which should not be the case as per Section 66 of the Finance Act, 1994. The Commissioner (Appeals) ruled in favor of the respondent, stating that the sub-contractor should not be liable to pay Service Tax if the main contractor has already paid it. This decision was supported by the Tribunal's ruling in Evergreen Suppliers v. Commissioner of Central Excise, Mangalore, which held that Service Tax should not be charged twice for the same transaction. 2. Applicability of Board's Circulars and Trade Notices: The Revenue relied on Board's Circular No. 96/7/2008-ST dated 23.8.2007, which clarified that sub-contractors are also taxable service providers and liable to pay Service Tax. However, the Commissioner (Appeals) and the Tribunal found that the circulars and trade notices from 1997 and 1998 indicated that the main contractor is liable for the Service Tax if the sub-contracted service is of the same category. The Tribunal also referenced the ruling in Sunil Hi-tech Engineers Ltd. v. Commissioner of Central Excise, Nagpur, which upheld the sub-contractor's liability to pay Service Tax. 3. Entitlement to Refund: The respondent claimed a refund of the Service Tax paid, arguing that the tax was not reimbursed by the main contractor and was shown as receivable in their books. The Commissioner (Appeals) allowed the refund, stating that the main contractor had already discharged the tax liability, and the sub-contractor was not obligated to pay it again. This decision was based on the principle that the same transaction should not be taxed twice. 4. Interpretation of Section 66 of the Finance Act, 1994: The Tribunal emphasized that Section 66 does not provide for multi-point taxation but rather destination-based taxation. Therefore, collecting tax twice on the same transaction is not permissible. The Tribunal referenced the Supreme Court's observation in All India Tax Federation v. Union of India, which highlighted that Service Tax is a VAT and should not be charged multiple times for the same service. 5. Applicability of Notification No. 1/2006-ST: The Revenue argued that the sub-contractor stopped paying Service Tax after 1.3.2006 due to restrictions in Notification No. 1/2006-ST, which prohibited availing CENVAT credit on inputs if abatement was claimed. The Tribunal found this notification to be in conflict with the charging section, Section 66, and held that it should not apply in this case. The Tribunal also referenced the ruling in JAC Air Services Pvt. Ltd. v. Commissioner of Service Tax, Delhi, which supported the view that Service Tax should not be demanded from the sub-contractor if the main contractor has already paid it. Conclusion: The Tribunal dismissed the Revenue's appeal and upheld the order of the Commissioner (Appeals), granting the refund to the respondent. The Tribunal concluded that the sub-contractor is not liable to pay Service Tax if the main contractor has already discharged the tax liability, and the conditions of Notification No. 1/2006-ST should not override the charging section of the Finance Act, 1994. The Tribunal's decision was based on the principles of destination-based taxation and avoidance of double taxation.
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